Citation Nr: 1761163
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 10-10 647 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts

THE ISSUES

1. Entitlement to an increased schedular rating for post-operative residuals of a right knee reconstruction since February 1, 2017, rated as 30 percent disabling.

2. Entitlement to an extraschedular rating for post-operative residuals of a right knee reconstruction since February 1, 2017.

3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disorders from February 1, 2017 to May 12, 2017.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Mary E. Rude, Counsel

INTRODUCTION

The Veteran served on active duty from May 1986 to January 1994.

These matters come before the Board of Veterans’ Appeals (Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In March 2013, the Veteran testified before the undersigned; a transcript of that hearing is of record in the Virtual VA file.

In September 2014 and October 2016, these issues were remanded for further development. In a July 2017 rating decision, the Veteran was granted a temporary total evaluation of 100 percent from March 1, 2016 to January 31, 2017 for convalescence following surgery. As that award constituted the maximum benefit, this period is no longer under consideration regarding entitlement to a higher schedular evaluation. See A.B. v. Brown, 6 Vet. App. 35 (1993). The Veteran was assigned a 30 percent rating for right knee degenerative joint disease, effective February 1, 2017. The Veteran was also granted entitlement to a total disability rating based on individual unemployability, on an extraschedular basis, effective May 13, 2017.

The issue of entitlement to a total disability rating based on individual unemployability from February 1, 2017 to May 12, 2017 is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction.

FINDINGS OF FACT

1. Since February 1, 2017, the Veteran’s post-operative partial right knee replacement symptoms have included severe painful motion and weakness.

2. In August 2015, under the provisions of 38 C.F.R. § 3.321 (b)(1) (2017), the VA Director of the Compensation Service denied entitlement to extraschedular benefits for post-operative residuals of a right knee reconstruction and right knee degenerative joint disease.

3. Since February 1, 2017, the Veteran’s right knee disabilities, including their combined effects, did not present such an exceptional or unusual disability picture that the available schedular evaluations are inadequate.

CONCLUSIONS OF LAW

1. Since February 1, 2017, the criteria for a schedular rating of 60 percent, but no higher, for a right knee disability, status post partial right knee replacement are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Codes 5055, 5257, 5260, 5261 (2017).

2. Since February 1, 2017, the criteria for an extraschedular rating for a right knee disability, status post partial right knee replacement, to include the combined effects of all service-connected disabilities, were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.71a, 4.118, Diagnostic Codes 5003, 5055, 5257, 5260, 5261, 7804, 7805 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).

The Veteran contends that his right knee disability warrants a rating higher than 30 percent since February 1, 2017. He has also asserted that an extraschedular evaluation is warranted because of severe disability caused by his right knee disorder. The Veteran testified in March 2013 that he missed work due to knee problems, had difficulty going up and down stairs, standing, walking; and suffered with frequent flare ups. He also testified that he had pain, popping, clicking, and that in the past year, he missed four days of school due to his knee. He stated that his knee went out a couple times a month.

In January 2015, the Veteran underwent a right knee patellofemoral arthroplasty. The question of whether an increased evaluation post-surgery was warranted for the Veteran’s service-connected right knee disability was remanded in October 2016 so that the severity of the disability could be reevaluated following his surgery and convalescence period. In a July 2017 rating decision a temporary total evaluation based on convalescence was extended to January 31, 2017, and a 30 percent evaluation for post operative residuals of a right knee reconstruction was assigned, effective February 1, 2017.

The Veteran has also been assigned a separate 10 percent rating since January 30, 2003 for right knee degenerative joint disease on the basis of limitation of extension under 38 C.F.R. § 4.71a, Diagnostic Code 5261. In the July 2017 rating decision, that evaluation was increased to 30 percent, effective February 1, 2017.

Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The issue currently on appeal applies only to the period since February 1, 2017.

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, it was held that when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be “‘portray[ed]’ (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. at 206.

The Board has reviewed all of the evidence of record and finds that the highest rating that can be assigned to the Veteran is a 60 percent rating for all residuals of his post-operative partial right knee replacement. There is no basis, however, for a rating any higher than 60 percent.

The Veteran’s post-operative residuals of a right knee reconstruction were rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, applicable to “other impairment” of the knee. This diagnostic code provides ratings for different degrees of recurrent subluxation or lateral instability. A 30 percent rating is assigned if recurrent subluxation or lateral instability is severe, and this is the highest rating available under this diagnostic code.

The Veteran attended a VA examination in May 2017. The examiner found no instability following testing despite a past history of instability, and no history of recurrent subluxation. The examiner did find that the Veteran had a meniscal tear and that recurrent patellar dislocation was “severe.” This was the basis for the rating decision to increase the Veteran’s evaluation under Diagnostic Code 5257 to 30 percent. As noted this is the highest rating available for recurrent subluxation. 38 C.F.R. § 4.71a, Diagnostic Code 5257.

The RO combined this rating with a separate rating under Diagnostic Code 5261. Diagnostic Codes 5260 and 5261 pertain to limitation of knee motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. In this regard, a normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II.

A limitation of leg flexion allows for a 10 percent evaluation when it is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A limitation of leg extension is assigned a 30 percent rating when it is limited to 20 degrees, and a 40 percent rating when it is limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.

The Veteran was assigned a 30 percent rating under Diagnostic Code 5261 because it was found at the May 2017 VA examination that he had extension limited to 25 degrees. The Board finds that no rating higher than 30 percent can be assigned under this Diagnostic Code. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran was able to perform repetitive use testing in the right knee with no additional functional loss or decreased range of motion. The examiner acknowledged that there was objective evidence of pain on passive motion and when the joint was used in non-weight-bearing, but there was no indication that pain caused any further limitation of extension than 25 degrees. A separate compensable rating cannot be assigned for limitation of flexion, as the Veteran’s flexion was to 100 degrees, with no additional functional loss or decreased range of motion after repetitive motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Veteran did not report having any flare ups, and the examiner found that the likely range of motion in the right knee after repeated use over time was still to 25 degrees of extension and 100 degrees of flexion.

The Veteran’s VA treatment records do not show any range of motion results since February 1, 2017 which would allow for any higher ratings under Diagnostic Codes 5260 or 5261. The Veteran’s VA treatment records show that he continued to report post-operative right knee pain. In July 2017, the Veteran reported that flexion had increased to 120 degrees with physical therapy, but that he was having trouble performing exercises due to pain. He stated that at the last visit, his flexion was up to 117-118 degrees. Range of motion testing found flexion to 104 degrees and full extension less 10 degrees. These results would in fact indicate better range of motion than that shown at the May 2017 VA examination. Thirty percent is therefore the highest rating that can be assigned based on limitation of motion or under other impairment of the knee.

Separate ratings may also be assigned under Diagnostic Codes 5258 and 5259 for dislocated cartilage with frequent episodes of locking, pain, and effusion or for removal of the cartilage, but as the Veteran has had neither a complete removal of the cartilage nor did he demonstrate effusion on examination, these rating criteria are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259.

To the extent that the Veteran has been found to have a meniscal cartilage disorder, its primary symptom, recurrent dislocation, has already been compensated for under the evaluation previously assigned. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (The evaluation of the same symptom manifestations under different diagnosis is generally to be avoided.). This symptom is the basis for the evaluation of 30 percent under Diagnostic Code 5257. If this symptom were to be evaluated under Diagnostic Code 5258 for dislocated cartilage, it would only allow a maximum evaluation of 20 percent, and thus the application of this diagnostic code would be less beneficial to the Veteran. 38 C.F.R. § 4.71a, Diagnostic Code 5258.

There is also no basis for a higher rating under 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2017), as there is no evidence that post-operative residuals of a right knee reconstruction have ever included ankylosis.

The Veteran may, however, be assigned a 60 percent rating under Diagnostic Code 5055, which evaluates knee replacement residuals, and which provides the Veteran with a slightly higher rating than that of two separate 30 percent ratings, when combined. See 38 C.F.R. § 4.25 (2017).

Under Diagnostic Code 5055, a knee placement is assigned a one year rating of 100 percent, and is then assigned a rating of 60 percent when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Board acknowledges that the Veteran’s medical records do not show that he has had a total knee replacement, but he has had a partial knee replacement. Significantly, in Hudgens v. McDonald, 823 F.3d 620 (2016), the United States Court of Appeals for the Federal Circuit held that the application of Diagnostic Code 5055 was not prohibited when evaluating residuals of a partial knee replacement.

At the Veteran’s May 2017 VA examination he reported that repeated use over time prevented him from being able to squat or kneel, and that walking and negotiating stairs was painful. The appellant’s abnormal range of motion interfered with using stairs, walking, kneeling, and squatting. Physical examination revealed severe recurrent patellar dislocation, as well as a meniscal tear causing frequent episodes of joint pain. The examiner also noted that the Veteran had painful and limiting soft tissue abnormalities above and below the right knee, and there was decreased right knee strength.

The Board finds that such symptoms involve chronic pain and weakness in the right lower extremity, and a 60 percent rating under Diagnostic Code 5055 is warranted. A 60 percent rating is the highest rating available under Diagnostic Code 5055. Id.

The Board also notes that a schedular evaluation greater than 60 percent is prohibited by the “amputation rule,” found in 38 C.F.R. § 4.68 (2017), which prohibits the assignment of a combined rating for disabilities of an extremity higher than the rating for the amputation at the elective level, were amputation to be performed. Amputation at the elective level would be at thigh level, middle or lower thirds. Amputation at that level warrants only a 60 percent disability rating. 38 C.F.R. § 4.71a , Diagnostic Code 5162 (2017). As such, the Veteran could not receive a higher rating for his right knee disability than for an amputated leg. Accordingly, a schedular rating in excess of 60 percent is not warranted.

The Board acknowledges that the Veteran’s VA treatment records, VA examination reports, and lay statements indicate that he has chronic knee pain. As such, the Board considered 38 C.F.R. § 4.59 regarding painful motion. Under 38 C.F.R. § 4.59, with any form of arthritis, actually painful joints are entitled to at least the minimum compensable rating. See also Petitti v. McDonald, 27 Vet. App. 415, 425 (2015) (“Under 38 C.F.R. § 4.59, the trigger for a minimum disability rating is an ‘actually painful, unstable, or malaligned joint [].'”). In this case, however, the Veteran has already been assigned far more than the minimum compensable rating for his right knee disability, and is now in receipt of the maximum available rating under 38 C.F.R. § 4.71a, Diagnostic Code 5055. See Petitti, 27 Vet. App. at 425. The evaluation already takes into account the Veteran’s limitation of motion hampered by pain, repetitive motion, and flare ups, as these symptoms were evaluated on his examination, and are included in the assessment that his symptoms are severe enough to warrant a 60 percent rating under Diagnostic Code 5055.

The Board has also considered the Veteran’s assertions that an extraschedular rating for his right knee disability is warranted.

As was discussed in the Board’s prior decision which denied entitlement to an extraschedular rating for post-operative residuals of a right knee reconstruction prior to November 2, 2015, in September 2014, the Board referred the issue of entitlement to an extraschedular evaluation for post-operative residuals of a right knee reconstruction to the Director of Compensation. The issue was referred on the basis of the Veteran’s statements that he has difficulty with stairs and standing and interference with employment, and due to the holding of Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Johnson held that the combined effects of multiple disabilities may be considered when determining whether an extraschedular rating is warranted.

When indicated by the evidence of record, the Board will consider whether referral for any extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Under the provisions of 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if a case “presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.” 38 C.F.R. § 3.321(b)(1).

There is a three-step analysis for determining whether an extraschedular evaluation is appropriate for a service connected disability. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the veteran’s service-connected disability and the established criteria found in the rating schedule to determine whether the veteran’s disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant’s exceptional disability picture exhibits other related factors identified in the regulations as “governing norms.” Id.; see also 38 C.F.R. § 3.321(b)(1). If the factors of step two are found to exist, the third step is to refer the case for a determination whether, to accord justice, the claimant’s disability picture requires the assignment of an extraschedular rating. Id.

The issue on appeal was referred for extraschedular consideration in September 2014. In August 2015, the Director of Compensation Service issued a memorandum finding that the Veteran’s right knee disabilities did not individually or as a whole present evidence of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalizations, which would render the application of the rating schedule criteria inadequate. The memorandum stated that the current evaluations accurately addressed the Veteran’s symptoms and the severity of his right knee disability. Because the Director determined that an extraschedular evaluation was not warranted, the Board now has jurisdiction to decide the extraschedular claim on the merits. See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009).

After reviewing all of the evidence of record, the Board finds that the severity of the Veteran’s right knee disability, including the combined effects of his right knee arthritis and post-operative residuals, including scars, are adequately contemplated by the rating schedule, and extraschedular evaluation is not warranted. The evidence does not present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The Veteran’s symptoms for his knee disabilities include pain, weakness, decreased range of motion, inability to stand or walk for long periods of time, difficulty performing physical exertion, and difficulty going up or down stairs. Pain, weakness, and decreased range of motion, including any popping or grinding, are precisely the type of symptoms which are encompassed by the rating criteria already assigned. The expected physical impact of such symptoms would include decreased mobility, including impairment of the Veteran’s ability to engage in physical activity. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011).

For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. The schedular criteria for musculoskeletal disabilities therefore contemplates a wide variety of manifestations of functional loss, and this functional loss does not constitute symptomatology outside of the schedular criteria or outside of “governing norms.” There is no evidence of any further impairment outside of the norm for these disorders or which would not be contemplated by the rating criteria. The Veteran’s surgery and its residuals, including all hospitalization and convalescence, were compensated with temporary total evaluations, and there is no evidence that the Veteran was further hospitalized at any time since February 1, 2017.

The Veteran has also discussed how his disabilities have impacted his functioning at work and school. The Veteran has described how he has missed work and at least four days of school due to his right knee disabilities, and that his occupational functioning is limited by his inability to stand for long periods. VA rating criteria are designed to be “adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1. The combined evaluation for his right knee disability, which is now 60 percent, is reflective of the impact that such disability is expected to have on his occupational functioning. Furthermore, the Veteran has been assigned an extraschedular total disability rating based on individual unemployability since May 13, 2017, and the issue of entitlement to a total disability rating based on individual unemployability for the period from February 1, 2017 to May 12, 2017 is addressed in the remand below.

As the Veteran’s symptoms are the type of symptoms contemplated by the Rating Schedule, the threshold factor for extraschedular consideration under step one of Thun has not been met, and the assigned schedular ratings are adequate. Therefore, the assignment of extraschedular disability rating is not warranted.

In sum, the highest evaluation that can be assigned for the Veteran’s right knee disability, to include all residuals of his partial right knee replacement, since February 1, 2017, is 60 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5055. The preponderance of the evidence is against finding that there is any higher rating or combination of separate ratings that can be assigned under any other applicable diagnostic codes. The Veteran’s symptoms do not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. As the preponderance of the evidence is against finding that any rating higher than 60 percent is warranted, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

ORDER

Entitlement to a rating of 60 percent, but no higher, for all post-operative residuals of a right knee reconstruction from February 1, 2017 is granted subject to the laws and regulations governing the award of monetary benefits.

Entitlement to an extraschedular rating for post-operative residuals of a right knee reconstruction from February 1, 2017 is denied.

REMAND

In October 2016, the Board remanded the issue of entitlement to a total disability evaluation based on individual unemployability due to service-connected disorders from August 1, 2016. Because the Veteran did not meet the schedular requirements for entitlement to a total disability rating based on individual unemployability, in July 2017, the RO referred the issue to the Director of Compensation Service for consideration on an extraschedular basis. See 38 C.F.R. § 4.16(b) (2016). The Director of Compensation Service then issued an Advisory Review finding that the service-connected right knee disability rendered the Veteran unable to secure and follow a substantially gainful occupation and that entitlement to a total disability rating based on individual unemployability was warranted, effective May 13, 2017.

The reasons and bases provided by the Director of Compensation Service do not, however, adequately explain why entitlement to a total disability rating based on individual unemployability was warranted only from May 13, 2017, the date of the Veteran’s VA examination. The VA examiner stated in his examination report that the Veteran could not perform either seated or ambulatory work, and that “this has been true for all of 2016 as well as to the present.” This arguably suggests that the Veteran was also unable to work prior to May 13, 2017. Therefore, the question of entitlement to a total disability rating based on individual unemployability from February 1, 2017 to May 12, 2017 remains unaddressed.

Because the medical evidence arguably suggests that while the Veteran did not meet the schedular standards to entitlement to individual unemployability based on individual unemployability during this period, he was nonetheless unable to obtain and maintain substantially gainful employment between February 1 and May 12, 2017 due to his service-connected right knee disability, the issue is remanded to the AOJ for referral to the Director of the Compensation Service. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996).

Accordingly, the case is REMANDED for the following action:

1. Refer the issue of entitlement to a extraschedular total disability rating based on individual unemployability from February 1, 2017 to May 12, 2017 to the Director of the Compensation Service for consideration under 38 C.F.R. § 4.16(b).

2. Then adjudicate the issue of entitlement to a total disability rating based on individual unemployability from February 1, 2017 to May 12, 2017. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the issue should be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court

of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).

____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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